The Filibuster: What Jefferson, Madison and others thought about majority rule

Sen. Harry P. Cain (R-Wash.), who says he has enough material for a 17-hour speech, rehearses the speech he has prepared for Senate floor delivery in opposition to the nomination of Mon Wallgren, former Washington governor, to be chairman of the National Resources Security Board, March 8, 1949, in Washington, D.C. Cain rehearses with security organization charts in the background. (AP Photo/Henry Griffin)

Both the argument against the filibuster and the ways it may be changed hinge on interpretations of majority rule. Here are six historical precedents.

The Senate will vote on changes to the filibuster Thursday. Both the argument against the filibuster and the ways it may be changed hinge on interpretations of majority rule.

Opponents of the filibuster argue that in its current incarnation, it essentially requires 60 votes for anything to get done, which they consider undemocratic. They also argue that the rules of the Senate can be changed by a simple majority.

The U.S. Constitution

What it says: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member. … The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

What it means: The Constitution never states that the Senate must be run by simple majority and says each chamber may write its own rules. But it also refers to senators being “equally divided,” which could not happen with a supermajority.

Federalist Paper No. 22

What it says: “If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.”

What it means: Hamilton argues that the requirement for a supermajority allows a minority to delay legislation improperly and force unpopular compromises.

Federalist Paper No. 58

What it says: “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.”

What it means: Madison argues that any procedure that requires a supermajority actually empowers the minority, since it only takes 41 percent of lawmakers to stop a bill, and he says this is undemocratic.

Manual of Parliamentary Practice

What it says: “No one is to speak impertinently or beside the question, superfluously or tediously. … The voice of the majority decides. For the lex majoris partis is the law of all councils, elections, &c. where not otherwise expressly provided.”

What it means: First, Jefferson argues that no senator can speak for longer than necessary. Later, he argues that simple majority rule (lex majoris partis) is the basic guiding principle for legislative votes.

United States v. Ballin

What it says: “The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes; and here the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either house shall be necessary for the passage of any bill. No such limitation is found in the federal constitution, and therefore the general law of such bodies obtains.”

What it means: The court ruled that since the Constitution does not mention any special requirements, the presumption is that it only takes a simple majority to pass any regular legislation.

Gordon v. Lance

What it says: “Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue.”

What it means: Since the Framers of the Constitution did not specify that majority rule is required in the Senate, then it is not necessarily unconstitutional.